1981 P Cr (PLP)

4. When arrested Muhammad Habib respondent was found to be wearing a pair of chappal of the deceased, Exh. P. 11/1-2, A kerchief and Rs. 8.C0 were also recovered from his person. These articles were taken into possession by the investigating officer vide memorandum, Exh. P. K. Muhammad Habib respondent got blood-stained datar, Exh. P. 6. recovered from his residential house and it was seized by the investigating officer after having been made into a sealed parcel vide memo randum, Exh. P. G. The red-coloured blood-stained kerchief of the deceased, Exh. P. 8, Rs. 781.00 in cash and bicycle, Exh. P. 7. were recovered from his house. The kerchief, Exh. P. 8, was made into a covered packet and alongwith the bicycle, Exh. P. 7, currency notes worth Rs. 781.00 was secured into possession by the investigating officer vide memo. Exh. P. H.

5. Abdul Razaq respondent pointed out to the investigating officer the place where the respondents had murdered the deceased and the Investigating Officer collected therefrom blood-stained earth which he took in his possession after making it into a sealed parcel vide memo randum, Exh. P. M.

6. Muhammad Habib respondent led the police to an, abandoned channel near Rajbah Dabanwala and unearthed therefrom blood-stained militia shirt, Exh. P. 11, blood-stained militia shalwar, Exh. P. 13, blood stained silken kerchief, Exh. P. 14, and blood-stained khadar saluka Exh. P. 15, of the deceased. These articles of clothing were covered into a sealed packet and taken possession of by the investigating officer vide memorandum, Exh. P. L.

7. The above-mentioned recovery memoranda were attested by the petitioner Sardar Shah (P. W. 14) and one Qurban Hussain Shah who was not produced by the prosecution.

8. Although Fazalur Rahman, P. W. 16, stated that the respondents had pointed out the place where the dead body had been thrown in Rajbah Dabanwala and it was eventually discovered lying near the railway bridge and taken possession of vide memorandum, Exh. P. B. yet in the said memorandum there is no reference of the fact that it was the respondents who led to the recovery of the dead body of the deceased.

9. Fazalur Rahman, P. W. 16, prepared the injury statement of the dead body of the deceased, Exh. P. M. and the inquest report in respect of death of the deceased, Exh. P. O. and bad the dead body despatched for post-mortem examination.

10. Dr. Muhammad Riaz Ali, Medical Officer, Civil Hospital, Toba Tek Singh, P. W. 1, conducted autopsy on the dead body of the deceased on the 12th June, 1977 at 9-30 a.m. and found thereon an incised wound around the neck. The head was missing and vertebrae under the injury was cut. The trachea and blood vessels in the neck and oesophagus were found cut. Other organs of the body were found to be decomposed. The injury was ante-mortem, caused with sharp-edged weapon and sufficient to cause death in the ordinary course of nature. It appeared to the Medical Officer to be the result of multiple injuries inflicted on one point. Death in his opinion was due to injury resulting in shock and haemorrhage. Death had occurred immediately after infliction of injury and probable duration of time between death and post-mortem examination was about ten days.

11. The hatchet, Exh. P. 1, and datar, Exh. P. 6, recovered at the instance of Abdul Razaq and Muhammad Habib, respondents, were found by the Serologist to be stained with human blood.

12. The respondents denied point blank their approaching the deceased, taking him alongwith them to Chak No. 331/J. B. for the treat ment of sister of Abdul Razaq, their commission of any offence touching the deceased and recovery of the weapons of offence and other articles of property of the deceased at their instance. They maintained that they had been apprehended by the police long before their formal arrest and they had been falsely implicated on mere suspicion. They did not choose to produce any evidence in defence.

13. Muhammad Bashir (P. W. 10) denied that the respondents had made any extra judicial confession before him touching murder of the deceased. He went to the length of saying that he did not know the respondents. He was declared hostile and allowed to be cross-examined by the Pubic Prosecutor. However, the prosecution could not elicit from him anything favourable to its case.

14. The learned trial Judge did not believe the recoveries of the weapons of offence and other incriminating articles of property of the deceased at the instance of the respondents. He viewed the recoveries to be concocted affair. He did not accept as true the fact that the dead body of the deceased had been recovered from the rajbah as the Medical Officer performing autopsy opined that he had not noticed anything indicating that the dead body bad remained under water for any length of time. From the very prosecution evidence the learned trial Judge noticed that the respondents had been with the police at police station Harappa before the dead body had been discovered and subscribed to the contention of the respondents that they had been taken by the police into custody long before they were formally arrested. He did not consider trustworthy the prosecution evidence touching the respondents having been last seen with the deceased. Absence of motive also weighed with the learned trial Judge to infer that the prosecution had not been able to bring home the guilt to the respondents beyond any reasonable manner of doubt. Therefore, he gave the respondents benefit of doubt and acquitted them.

15. It is true that the medical evidence belies the prosecution case inasmuch as it negatives the possibility of the dead body of the deceased having been remained under water for so many days. It is rather surprising that the investigating officer did not associate any of the respectable inhabitants of Chak No. 331/J. B. with the recovery proceedings although, as he admitted, Lambardars of that village were available. Sardar Shah, the petitioner, the only recovery witness belongs to distant village and is necessarily an interested witness. As discussed by the learned trial Judge it appears rather un-appealable to reason that the respondents were found wearing the wrist watch, ring and chappal of the deceased at the time of their arrest on the 11th June, 1977. They knew well that the police had arrived in their village the preceding night. In actuality, as observed earlier, the respondents were already in the custody of the police before the case was registered and the process of investigation and effecting recoveries started. In such circumstances the whole show of recovery staged by the investigating agency was no more than a mock one. The recoveries were rightly disbelieved by the learned trial Judge. Jan Muhammad (P. W. 6), Faqir Muhammad (P: W. 7) and Mehr Bashir Ahmad Kathia (P. W. 8) did not know the respondents before. They did not give any specific date as to when they saw them with the deceased. The deceased is alleged to have gone with the respondents twice, once on the 29th May, 1977 and then again four days later, that is, on the 2nd June, 1977. It is possible that the aforementioned prosecution witnesses might have seen the deceased with the respondents on their first visit, the second visit being in close promixity of time to the first visit. In the absence of mentioning of specific date of their having seen the deceased in the company of the respondents it cannot be said that they last saw him with the respondents on the 2nd June, 1980. The testimony of Ghalib Hussain (P. W. 13) and Sardar Shah petitioner (P. W. 14) is definitely interested and is without any reliable corroboration to link the respondents with the commission of crime. Though Muhammad Suleman (P. W. 5) g states that he saw the respondents going with the deceased and he is also related to Muhammad Habib respondent yet his mere statement to that effect is not enough to brand the respondents guilty of the commission of offence with which they were charged. On the evidence brought on the record it was permissible for the learned trial Judge to hold the view which he formulated. His decision does not seem to suffer from any illegality nor is it improper.

16. The learned counsel for the petitioner contended that the respon dents could have been convicted for commission of offence contemplated by section 364 of the Pakistan Penal Code even if commission of offence of murder and destroying evidence in respect thereof bad not been roved against them. Nevertheless, the learned counsel conceded that the' point relating to conviction of the respondents under section 364 of the Pakistan Penal Code was not raised before the learned trial Judge at all. In such circumstances it would not be possible to revise the judgment so as to order retrial of the case with a view to securing conviction of the respondents under section 364 of the Pakistan Penal Code especially when commission of such an offence by them even otherwise cannot be said to have been established from the material on the record.

17. In view of the above the petition fails and is dismissed. Petition dismissed